On 1 August 2014, the Competition Appeal Tribunal (“the Tribunal”) delivered its judgment in five related appeals from Ofcom’s Ethernet Determination of 20 December 2012. The Determination itself resolved a number of regulatory disputes between BT and various communications providers that purchase wholesale Ethernet services from it by (i) finding that BT had breached an SMP Condition requiring it to charge cost orientated prices for the relevant wholesale Ethernet services and (ii) requiring BT to repay the resultant overcharge to its wholesale customers without interest.
The Tribunal’s detailed judgment addresses three important issues: (i) the correct approach to the assessment of cost orientation, (ii) Ofcom’s jurisdiction to order repayment of overcharges levied prior to a dispute being brought and (iii) the scope of Ofcom’s discretion to order interest on repayment in circumstances where there is a contractual term providing for no interest to be awarded.
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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.